STREETER v. STATE OF NEW YORK, #2002-018-127, Claim No. 100623
The Court finds that appropriate force was used in responding to claimant's
aggressive and belligerent behavior. No evidence was presented to support the
theory that there was negligence on the part of the defendant. The claim is
WILLIAM W. STREETER The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
ABDELLA LAW OFFICESBy: GEORGE ABDELLA, ESQUIRE
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
April 4, 2002
See also (multicaptioned
The claimant seeks damages for injuries he sustained allegedly as the result of
negligence or the use of excessive force by the New York State Police on April
10, 1999, at the New York State Police barracks in Fonda, New York. The trial
was bifurcated and this decision addresses the issue of liability only.
On April 9, 1999, claimant spent the day at work and had plans to meet his
brother and others for dinner that evening. One of claimant's friends met him
at a bar in Fonda at approximately 6:30 p.m., where claimant drank two beers.
They then went to another establishment, met claimant's brother and friend, and
had dinner. Claimant drank one beer before dinner and a second beer after
dinner. They ended the evening at Logan's where claimant drank two more beers
and a mixed drink. Claimant left Logan's at approximately 12:10 a.m.
From Logan's, claimant walked to his pickup truck and drove down an alley-type
road to a main road intersection. He admittedly did not buckle his seat belt
until he stopped at the stop sign at the intersection of the alley and the main
road. He saw a marked State Police vehicle in the alley. The State Police
vehicle followed claimant for two-to-three miles then pulled him over. According
to the two troopers involved, Troopers McCrum and Gaba, Trooper McCrum noted
claimant driving without a seat belt and for that reason, they made the traffic
stop. Claimant promptly pulled over in response to Trooper McCrum activating his
Trooper McCrum approached claimant's window and Trooper Gaba walked along the
passenger's side of the truck. Trooper McCrum smelled an alcoholic beverage
emanating from the cab of the truck. Claimant was asked to produce his license
and registration and to exit and walk to the back of the truck.
According to claimant, he totally cooperated with the officers from providing
Trooper McCrum with his license and registration to performing field sobriety
tests. He did admit to saying the stop was "b_ _ _ s _ _
The troopers testified that claimant was
extremely uncooperative and verbally abusive. They had to assist him out of his
vehicle and to the back of his truck so they could initiate the roadside driving
while intoxicated (hereinafter "DWI") tests. After the field sobriety testing,
claimant was taken to the trooper barracks in Fonda. Claimant testified that he
was never told he was under arrest, although he acknowledged that he was placed,
handcuffed, in the trooper vehicle. Both troopers said claimant resisted having
the handcuffs put on, becoming agitated and abusive. Trooper McCrum, who had
the primary contact with claimant, described how he continually attempted to
maintain control and calm claimant by speaking quietly and giving a complete
explanation of what was happening. On the ride to the barracks, claimant
recalled amicable small talk between himself and the troopers. The troopers
said claimant was calm during this time.
Upon arrival at the station, claimant was taken to the processing room which,
as claimant described, contained the Breathalyzer machine and two chairs.
Claimant was seated in a wooden chair a few feet inside the doorway while
Trooper McCrum prepared the Breathalyzer machine. Trooper McCrum administered
the Breathalyzer and the results of claimant's blood alcohol count were .10.
Troopers McCrum and Gaba and the claimant were the only people at the barracks.
At the trial, from this point forward, each of the three participants had a
different recollection of the events leading up to the time claimant was
injured. The Court will set forth each version and subsequently make specific
findings of fact.
CLAIMANT'S VERSION OF THE INCIDENT:
Upon learning of the test results and that further processing would be
required, claimant was upset and repeated that this was "b_ _ _ s _ _ _." In his
deposition, claimant said he began to rant and rave. Trooper McCrum told
claimant that he needed to be fingerprinted and Trooper Gaba said he was going
to call a tow truck for claimant's vehicle and left the room.
Trooper McCrum repeated to claimant that he needed to be fingerprinted; and
claimant said he understood, but wished to speak with Bob VanAlstyne, a deputy
sheriff with whom claimant was acquainted. The trooper said he could not speak
with him because Bob Van Alstyne was in Mayfield. In claimant's deposition he
said Trooper Gaba, not McCrum told him Bob VanAlstyne was in Mayfield; on
redirect, he noted that one of the troopers said it but he was not sure which
Trooper McCrum told claimant if he would not get fingerprinted, he would go to
jail instead of arraignment and suggested he should think about what he wanted
to do. Claimant said he never refused to participate in the processing.
Trooper McCrum then left claimant alone in the room for ten-to-fifteen minutes.
Claimant said he estimated the time because there was no clock in the room.
Claimant's leg began to cramp so he got up and walked toward the far end of the
room away from the doorway and the chair he was on. When claimant's back was to
the door, Trooper Gaba came into the room and while close enough to be touching
claimant, screamed "sit down" in claimant's ear. Claimant was shocked that the
trooper was screaming. Claimant did not sit down immediately and Trooper Gaba
yelled two more times before claimant reacted and turned toward the chair. As he
turned to his left, he was hit from behind on the back part of his head. The
blow knocked him forward but did not knock him down. Claimant said, "You just
screwed up," and he was hit again. Claimant could not get his cuffed hands up to
break his fall. He fell forward, hit his forehead on the floor and recalled
The next thing claimant remembers is Trooper McCrum helping him up to the chair
and being cuffed to a chain on the wall. The troopers then completed the arrest
process by fingerprinting and photographing claimant. Claimant was alone again
until Sgt. Jovanovitch entered.
The sergeant took a statement from claimant on three-quarter size, form paper
with carbon copies attached. He recalls proofreading the statement; the
sergeant wrote the document and then claimant read and initialed each page. On
the first three to four pages he used the initials, "B.S.," and on the remainder
he used "W.S." Claimant then heard a noise from the back door and heard Bob
VanAlstyne's voice but claimant did not see him that night. Some time
thereafter, claimant was taken to St. Mary's Hospital for treatment. He received
an abrasion and contusion on his forehead, a contusion on his right occiput, a
strain to his right first metacarpal and carpal joint, a superficial bite to his
left tongue tip and an abrasion and contusion to his left lower
TROOPER GABA'S VERSION OF THE INCIDENT:
After the results from the Breathalyzer were obtained, Trooper Gaba was in the
processing room, leaning on a windowsill to the right of where claimant was
sitting, when Trooper McCrum advised claimant that he was to be charged with
DWI. Claimant was angry, using profanity and claiming the officers set him up.
Both troopers told claimant to calm down; Trooper McCrum said claimant was not
making it any better for himself by his behavior. Trooper McCrum went on to
explain to claimant the procedure for fingerprinting and photographing a person
charged with a misdemeanor. Claimant continued to be verbally abusive and
Trooper McCrum left the processing room to call a tow truck for claimant's
vehicle, and Trooper Gaba stayed in the room. Trooper Gaba recalled that
claimant was not left alone in the processing room because he was not handcuffed
to the chain imbedded in the floor. Claimant was agitated and fidgeting while
Trooper Gaba talked to him about the required processing. Claimant repeated
that it was all "B.S." then said he would not do
and stood and turned toward Trooper
Gaba and the door. Trooper Gaba asked him to sit down. After a slight
hesitation, claimant moved toward the door.
Trooper Gaba stepped in front of claimant, told him to stop, and put his hands
on claimant's shoulders as claimant continued to move forward toward the door.
Trooper Gaba pushed him back toward the chair. Claimant grabbed Trooper Gaba's
shirt and tie; pushing him in the chest while Trooper Gaba pushed claimant by
the shoulders, sitting him back in the chair.
Claimant got back up, still holding Trooper Gaba's shirt and tie, and the
pushing continued. To get claimant off of him, Trooper Gaba, using claimant's
forward momentum as claimant pushed into his chest, threw claimant into the
door. The back of claimant's head hit the door. As claimant rebounded, Trooper
Gaba used a leg sweep
to take claimant to the
floor and control him.
Claimant fell to the floor face first; Trooper Gaba held him down by leaning on
claimant's shoulders. By now, Trooper McCrum was in the doorway and assisted
Trooper Gaba by holding claimant's legs until claimant calmed down. Claimant was
returned to the chair and then was handcuffed to the chain cemented into the
Trooper Gaba left the room to call a sergeant, the required procedure when a
prisoner gets injured, and thereafter stayed out of the room. Trooper McCrum
remained with claimant.
Trooper Gaba rode with claimant and Trooper McCrum to the hospital but rode
back to the barracks with Captain Pace who met them at the hospital. He
assisted Trooper McCrum in completing the paperwork required for claimant's
arrest, then left. The DWI bill of particulars
contains a section which requires the
initials of the arresting officer and the arrestee. Claimant initialed the
document in Trooper Gaba's presence, using the initials "B.S
Trooper Gaba testified that no one other than claimant and the State Troopers
came to the barracks in Fonda that night.
TROOPER McCRUM'S VERSION OF THE INCIDENT:
Upon their arrival at the Fonda barracks, the troopers took claimant into the
processing room where Trooper McCrum had claimant sit in a wooden chair.
Trooper Gaba may have left the room briefly to enter the arrest in the blotter.
Approximately five to eight minutes after entering the room, claimant took the
Breathalyzer test. Trooper McCrum thought Trooper Gaba was in the room at this
point, although Trooper Gaba may have left a few times for administrative
reasons. Claimant's test results were a .10; and as a result, Trooper McCrum
told claimant he was legally intoxicated. Claimant became agitated and Trooper
McCrum directed him back to the wooden chair from the Breathalyzer machine.
Although claimant could have been chained to the floor, he was not.
Trooper McCrum then told claimant that further processing, such as fingerprint
cards and photographing would be necessary. Claimant responded repeatedly that
it was all "b _ _ _
s _ _ _," and refused to cooperate with the fingerprinting. Trooper Gaba was in
the room during this exchange. Trooper McCrum explained to claimant that his
continued refusal would result in his being held after arraignment to complete
the processing. Claimant continued to refuse. Trooper McCrum then left the room
to complete paperwork, specifically the DWI bill of particulars. He went to the
patrol room just outside the processing room. Claimant had not been left alone
up to this point because he was not secured to the chain on the floor, and he
was highly agitated and uncooperative. The troopers must prevent a prisoner
escape, personal injury or property damage so Trooper McCrum felt claimant
should be in sight at all times.
From Trooper McCrum's desk, 10 feet away, he could not see the interior of the
processing room because of the angle. Trooper McCrum heard Trooper Gaba say sit
down a few times and each time he said it, his voice inflection changed so
Trooper McCrum surmised Trooper Gaba was having trouble with claimant.
Claimant's voice was agitated but Trooper McCrum could not distinguish any
After a few seconds, Trooper McCrum walked over to the processing room and
stopped at the doorway. He saw Trooper Gaba and claimant standing in about the
center of the room with claimant's hands against Trooper Gaba's shirt near his
neck line pushing him. Trooper Gaba was pushing back on claimant's shoulders
trying to gain control of claimant. Both of them rotated and claimant's back hit
the processing room door. Trooper McCrum was in the open doorway. Claimant
rebounded off the door and fell face down with Trooper Gaba on claimant's back.
Claimant tried to get up so Trooper McCrum went over to secure claimant's legs
and feet. At this point, claimant was near the center of the room. Trooper Gaba
was telling claimant to calm down and to stay on the floor. After claimant
calmed down, they helped him up and sat him back on the chair and secured him to
the chain on the floor. Trooper McCrum stayed with claimant and Trooper Gaba
left the room.
One of the troopers called Sgt. Jovanovitch who eventually arrived at the
barracks and took a statement from claimant. Trooper McCrum drove claimant to
the hospital and stayed with him there. He recalls completing claimant's
processing and paperwork after returning from the hospital. Trooper McCrum
believes Trooper Gaba rode in different vehicles to and from the hospital. No
one else came to the barracks that night. Trooper McCrum took claimant to court
for arraignment at approximately 6:00 a.m.
Where the parties involved present markedly disparate factual accounts of the
incident leading to claimant's injuries, the responsibility for assessing the
credibility of the witnesses and resolving factual discrepancies lies with the
trier of fact. (See, LeGrand v State of New York, 195 AD2d 784, 785,
lv denied 82 NY2d 663)
The claimant's statement to Sgt. Jovanovitch given the night of the incident
said Trooper Gaba "grabbed me by the shoulders and threw me down on the
There is no mention of a hit on the
back of his head although claimant's statement includes a bump on the back of
his head as one of his injuries. The medical records support this fact but do
not contain any history that would explain an injury to the back of claimant's
head. Claimant's next recitation of the events is his deposition taken February
and states that claimant was hit in
the back of the head by Trooper Gaba, he fell to the floor and then, "I saw
black for a time period."
At trial, claimant
testified Trooper Gaba hit him on the back of his head which knocked him forward
but not to the floor, then he was struck a second time and he fell to the floor.
Again, he said he saw black and he could not say if he was knocked out. The
medical records of that evening say "Negative for loss of
Although claimant's original
statement is, arguably incomplete, what he describes in it comports with the
memoranda written by the troopers that night. Trooper McCrum said that,
"...Trooper Gaba was able to put Streeter to the
and Trooper Gaba wrote:
Writer [Gaba] met Streeter at the door and restrained him by
grabbing his shoulders and telling him to sit down in the chair.
Streeter stated ‘f _ _ _ you' and continued toward the door
pushing on writers [sic] chest with his closed fists. Writer
continued to order Streeter to be seated and attempted to push
Streeter back into the room and ordered him to stop resisting.
Streeter continued to fight with writer and writer attempted to
take the subject down to the ground to restrain him from making
any more aggressive moves toward writer. Writer shoved Streeter
into the door of the processing room and took the subject to the
Other facts not contained in the claimant's original statement were included in
later recitations. For example, there was no mention of Trooper Gaba leaving the
processing room in claimant's first statement; he was in the room talking to
claimant. In claimant's deposition, he did leave the room but claimant gave no
explanation for why he got out of the chair and wandered around the room. At
trial, claimant says he got a cramp in his leg and got up to walk it out while
alone in the room.
At trial, claimant described the barracks and processing room in detail but
testified that there was no clock, no sink and no second desk in it. The
photographs of the room show these items
that room. Although the clock and desk could have been added since the incident,
it is highly unlikely that the sink was new. Claimant's memory was faulty
regarding his statement to Sgt. Jovanovitch as well. He recalled initialing and
signing an eight or nine page statement. The statement was barely three pages
Claimant recalls the paper the
sergeant used as being approximately eight inches long; the paper was standard
size. Claimant said he initialed the statement with B.S. then W.S. All of his
initials on the statement were W. S. He used B.S. on the DWI bill of
As a rebuttal witness, claimant called Deputy Robert VanAlstyne to dispute the
testimony of the three troopers, Troopers Gaba, McCrum, and Sgt. Jovanovitch,
who all testified that no one other than the troopers and claimant were at the
barracks that night.
Deputy VanAlstyne testified that he was on road patrol the night of April 10,
1999 when he received a radio call from the dispatcher. He was dispatched to the
State Police Barracks to help calm the claimant. When he arrived at the
barracks, he went to the back door and knocked. A trooper with sergeant stripes
answered the door and told him his assistance was no longer needed so he left.
Deputy VanAlstyne did not know the trooper who answered the
Claimant recalled hearing Deputy
VanAlstyne's voice that night.
It is troubling to the Court that none of the troopers acknowledged the arrival
of the deputy although it is possible that Troopers McCrum and Gaba were unaware
that Mr. VanAlstyne went to the barracks that
One of the troopers had to place the
call to the sheriff's department to request that Deputy VanAlstyne be dispatched
to the barracks. After reviewing the trial testimony, none of the troopers were
asked if they had placed the call. In any event, any lack of candor on this
issue by at least one of the troopers is not germane to the events leading to
claimant's injury and does not distract from the consistency of Trooper Gaba's
description of what transpired that evening in his initial statement, his
deposition testimony and his trial testimony. His recitations of the events were
also supported by claimant's medical records and, to some degree, by Trooper
McCrum. As noted above, claimant's recollection of that night is flawed.
Although both sides gilded the lily, the Court finds Trooper Gaba's description
of events most credible.
Claimant alleges Trooper Gaba used excessive force that night. Claims of
excessive force must be examined within the context of the circumstances in
which they arose. (Cf., Passino v State of New York, 175 Misc 2d 733,
736, aff'd 260 AD2d 915, 916; lv denied 93 NY2d 814; Lewis v
State of New York, 223 AD2d 800; Brown v State of New York, 24 Misc
2d 358) Law enforcement officers are permitted to use force which is reasonable
and appropriate under the prevailing circumstances. (See, Wester v State of
New York, 247 AD2d 468; Higgins v City of Oneonta, 208 AD2d 1067,
lv denied 85 NY2d 803; Arnold v State of New York, 108 AD2d 1021,
appeal dismissed 65 NY2d 723; Stein v State of New York, 53 AD2d
988; Brown v State of New York, supra)
The defense called an expert witness, Sgt. Nick Coffman of the New York State
Police. Sgt. Coffman teaches Defensive Tactics and Physical Training at the
State Police Academy in Albany and taught Troopers McCrum and Gaba. Troopers are
taught the level of response they should use when dealing with arrestees. Sgt.
Coffman explained how the behavior of a person interacting with the police
impacts the behavior of the officer involved. In doing so, Sgt. Coffman used a
chart called the Use of Force Continuum.
The chart separates an arrestee's type of behavior into five (other similar
charts sometimes use four) levels. Opposite the behavior is the level of
response by the officer. For instance, if the arrestee is being cooperative and
calm, level one, the officer's response must also be level one. The levels are
fluid and can overlap. Also, an arrestee's behavior does not necessarily move
orderly from one level to the next. A seemingly cooperative person pulled over
for a traffic stop could suddenly display a weapon, thereby moving directly from
level one to level four behavior. The troopers are instructed to respond at an
equivalent or lower level of force which corresponds to the arrestee's behavior
In Sgt. Coffman's opinion, after reviewing the troopers' deposition transcripts
and hearing them testify, neither McCrum nor Gaba used excessive force in
restraining claimant. The sergeant felt claimant's behavior had reached a level
four when claimant grabbed and pushed Trooper Gaba. As part of their training,
troopers learn that people in custody can use handcuffs as a weapon. Trooper
Gaba used a level three response with the leg sweep. In Sgt. Coffman's opinion,
Trooper Gaba was justified in the level of force used.
The Court finds, based upon Trooper Gaba's description of the incident, that he
used appropriate force in responding to claimant's aggressive and belligerent
behavior. No evidence was presented to support the theory that Troopers Gaba or
McCrum acted negligently that night.
ACCORDINGLY, the claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.
April 4, 2002
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
All quotes are from the trial transcript or
the Court's trial notes.
Claimant needed to sign the fingerprint cards
and initial the DWI bill of particulars.
Exhibit N, p. 84, l - 8
Deputy VanAlstyne testified that he was an
acquaintance of claimant and Troopers McCrum and Gaba.
Sgt. Jovanovitch was the only trooper with
sergeant stripes at the barracks that night during claimant's processing.